Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. I.
What Rights go to Heirs.
The Representatives of Mary and Janet Walker v. The Representatives of William Walker
Date: 7 December 1744 Case No. No 13.
A substitution to a person failing another was found to carry the right to the heirs of the substitutes who failed before the institute.
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Robert Walker in Badlormy disponed to William Walker his brother, his whole effects that he should have at his death, estimating them at 1800 merks, under the burden of a legacy of 300 merks; and he specially provided and declared, “That in case William should die without children, the sum of 1500 merks, to which the goods, gear, and others foresaid, did extend, should fall, pertain, and belong, to the persons underwritten,” &c. And amongst these are Mary and Janet Walkers his sisters, who having predeceased their brother William, and he also dying without children, their representatives pursued his for the sums left them in the disposition.
Pleaded for the pursuers, That the sums left to their predecessors were not to be considered as legacies, but substitutions; the whole which was left to William, deducting the legacy, was estimated at 1500 merks, and that is quite exhausted with substitutions, failing him and the heirs of his body; in case of which failure, Mary and Janet being called, the pursuers apprehend they are comprehended under that call; Janet and Mary are preferred to the extraneous heirs of William; and therefore the pursuers their children ought likewise to be so. It is agreeable to law, that what is provided in favours of a man, is understood to be also in favours of his heirs, L. 30. Cod. De fideicommissis, 5th January 1670, Innes against Innes, No 60. p. 4272.
Pleaded for the defenders, The pursuers not being called in Robert's settlement, can only claim as representing Janet and Mary, who never having any right, could transmit none to them. The maxim, That what is provided to a man is provided to his heirs, does not apply; for though it may hold in a settlement of an estate on a man, that it goes from him to his heirs, though, not mentioned; yet if he is only the substitute in an entail, and dies before the institute, his heirs can have no claim.
The testator appears to have preferred William and his children, and failing them, Janet and Mary; but here the deed stops; and it does not appear that he preferred their representatives to all others.
The Lords repelled the objection, That Mary and Janet Walkers were dead before William Walker, and found that their heirs had right to the subject, on making up proper titles.
Reporter, Lord Justice-Clerk.Act. Gillon.Alt. H. Home.Clerk, Forbes.
D. Falconer, v. 1. p. 22.
